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Who owns a download? Disney files suit against Redbox.

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Copyright law has always confused people, especially when it comes to popular media like musical recordings and movies. In the digital era media overlaps with software, making the conversation increasingly muddled.

What is the lawsuit about?

There is no shortage of news about copyright infringements, but when household names like Redbox and Disney have a dispute, it’s worth discussing the details. Disney filed an infringement case against Redbox for how it’s using digital download codes.

Redbox is purchasing Disney combo packs, each containing a Blu-ray disc, a DVD and a download code, and then it rents the download codes at a discounted price. Disney argues that codes are not for sale or transfer—explicitly saying this on the package. Redbox, on the other hand, argues that the downloads are simply “first sale doctrine,” an established legal principle that lets the purchaser of media resell it at their discretion. It’s the premise that allows for resale of items at used book stores, record stores and even libraries.

What is first sale doctrine?

First sale doctrine is an integral part of copyright law in the US, but it’s also complicated by medium. At a basic level, it considers the buyer’s rights to reproduce their purchase and their right to distribute it. With physical items, first sale doctrine primarily addresses the purchaser’s distribution rights.

Digital items are more complex: part artwork, part software. Each sale of a digital item, creates a new copy, unlike with a physical item that already exists, but changes hands. The distribution stream is different than with physical items. Some software even defines the user agreement as a lease or license agreement. One common example is an eBook rented from a public library.

What is ownership?

Technology often moves faster than the law, which means the case of Disney v. Redbox will offer a unique glimpse at copyright law as it applies to modern media. What stands out is that basic concepts, including ownership, are not so easily defined. Anyone with copyright concerns should consult an experienced intellectual property attorney to review your case to gain a full understanding of the situation.

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